[2024] KEELC 6407 (KLR)

Kithome & another v Haile & another (Environment & Land Case E194 of 2024) [2024] KEELC 6407 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6407 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E194 of 2024

JO Mboya, J

October 3, 2024

Between

Alice Sylvia Kithome

1st Plaintiff

Brenda Jebiwot Lagat

2nd Plaintiff

and

Yusuf Hussein Argamo Haile

1st Defendant

George N. Muiruri t/a Phillips International Auctioneers

2nd Defendant

Ruling

Introduction And Background 1. The Plaintiffs/Applicants herein filed the Notice of Motion application dated the 14th May 2024 and wherein same sought for various reliefs. Subsequently, the Application dated the 14th May 2024 was amended culminating into the amended application dated the 4th June 2024.

2. Vide the amended Notice of Motion dated the 4th June 2024, the Plaintiffs/Applicants have sought for the following reliefs;i.This Application be certified urgent and be heard ex parte in the first instance.ii.Pending hearing and determination of the 1st & 2nd Applicant Amended Notice of Motion dated 4th June 2024, an order do issue restraining the 1st and 2nd Defendants, their agents, employees and/or servants from harassing attaching, advertising and auctioning the 1st & 2nd Applicant property.iii.Pending hearing and determination of the 1st & 2nd Plaintiff's Amended Plaint dated 4th June 2024, an order do issue restraining the 1st and 2nd Defendants, their agents, employees and/or servants from harassing, attaching, advertising and auctioning the 1st & 2nd Plaintiff property.iv.The costs of this application be in the cause; andv.Any other order as this Honourable Court deems fair and just.

3. The amended application beforehand is premised on various grounds, which have been enumerated in the body thereof. Furthermore, the application herein is supported by the amended supporting affidavit sworn by Alice Sylvia Kithome on the 4th June 2024 and another amended supporting affidavit sworn by Brenda Jebiwot Langat on even date.

4. Suffice it to point out that upon being served with the amended application as well as [sic] the amended supporting affidavit, the Defendants/Respondents filed a replying affidavit sworn on the 2nd July 2024 and wherein the Defendant/Respondent denied the claims adverted to at the foot of the application by the Plaintiffs/Applicants.

5. The matter herein came up for directions on the 20th June 2024; whereupon the advocates for the respective parties intimated that same would be keen to file and exchange written submissions. Furthermore, learned counsel for the Plaintiff/Applicants contended that other than the application dated the 4th June 2024, the Plaintiffs/Applicants were also keen to challenge the competence of the replying affidavit and the verifying affidavit attached to the statement of defence and counterclaim.

6. Arising from the foregoing position, the court proceeded to and issued directions pertaining to the disposal of the amended notice of motion application as well as the question of the competent of the replying affidavit. In this respect, the court directed the parties to file written submissions within circumscribed timeline.

7. Suffice it to state that thereafter the Plaintiff/Applicants proceeded to and filed two [2] sets of written submissions whereas the Defendants/Respondents filed one [1] set of written submissions.

8. For coherence,the three [3] sets of written submissions forms part of the record of the court.

Parties’ Submissions: Applicants’ Submissions: 9. The Applicants here filed two [2] sets of written submissions and wherein same [Applicants] adopted the grounds contained at the foot of the amended application and furthermore, reiterated the averments contained at the foot of the two [sic] amended supporting affidavit sworn on the 4th June 2024.

10. In addition, learned counsel for the Applicants ventured forward and highlighted three [3] pertinent issues for consideration by the court. Firstly, learned counsel for the Applicants submitted that the Applicants herein entered into and executed a lease agreement with the 1st Defendant/Respondent whereupon the 1st Defendant demised to and in favour of the Applicants the premises situate on L.R No. 209/3746, Zanzibar Road within the City of Nairobi.

11. It was the further submissions by learned counsel for the Applicants that upon the execution of the lease agreement, the Applicants herein entered upon and took possession of the demised premises. Furthermore, it was contended that the Applicants similarly paid deposit on account of rents in the sum of Kes.700, 000/= only.

12. Nevertheless, learned counsel for the Applicants contended that despite the existence of a lease agreement between the Applicant and the 1st Defendant, the 1st Defendant proceeded to and evicted the Applicant[s] from the demised premises. Furthermore, it was submitted that the Applicants herein have continued to be locked out of the demised premises to date.

13. Secondly, learned counsel for the Applicant has further submitted that other than locking the demised premises and evicting the Applicants thereof, the 1st Defendant/Respondent also retained the services of the 2nd Defendants/Respondents to levy distress and to attach the movable property which were obtaining in the demised premises.

14. It was contended that pursuant to and arising from the instructions by the 1st Defendant/Respondent, the Applicants properties were illegally seized and confiscated. In this regard, the Applicants have contended that the seizure and attachment of the movable properties has subjected same [ Applicants] to undue prejudice and substantial loss.

15. Thirdly, learned counsel for the Applicants has submitted that the Applicants herein shall be exposed to suffer irreparable loss and continued deprivation of their properties, unless the court proceeds to and grant the reliefs sought at the foot of the amended application dated the 4th June 2024.

16. Other than the foregoing, learned counsel for the Applicants has also submitted that the amended replying affidavit and the verifying affidavit, the latter attached to the counterclaim have been commissioned by a person, namely, Boniface M. Muumbi, who is neither authorized nor sanctioned to administer oath. In this regard, learned counsel for the Applicants has cited and referenced the provisions of Section 4, 5 and 8 of the Oaths and Statutory Declaration Act, Chater 15 Laws of Kenya.

17. Additionally, learned counsel for the Applicant has also cited and referenced the decision in the case of Gedion S Konchela v Julius Lekakeny Olesuli [2021]eKLR and Olago & Another [Suing on their own behalf and on behalf of 26 Others v Njau & 3 Others; National Environmental Management Authority [2022] KEELC 13726 [KLR] respectively to amplify the submissions that where an affidavit is not properly commissioned, same is vitiated and thus ought to be expunged from the record.

18. In a nutshell, learned counsel for the Applicants has invited the court to find and hold that the amended notice of motion application is meritorious and thus ought to be allowed. In this regard, the Counsel has implored the Court to grant the reliefs sought thereunder.

Respondents’submissions’: 19. The Respondent herein filed written submissions dated the 21st September 2024 and wherein the Respondents have adopted and reiterated the contents of the replying affidavit sworn on the 2nd July 2024 and thereafter proceeded to highlight two [2] salient issues for consideration by the court.

20. First and foremost, learned counsel for the Respondents has submitted that the replying affidavit and the verifying affidavit attached to the counterclaim, which are contended to have been commissioned by an unauthorized person were indeed commissioned by an authorized commissioner of oath.

21. In particular, learned counsel for the Respondent has submitted that the impugned replying affidavit and the verifying affidavit were indeed commissioned by one Boniface Munyao Muumbi, who was duly appointed as a commissioner for oath on the 17th July 2013.

22. Arising from the foregoing, learned counsel for the Respondent has submitted that the contention by the Applicants that the impugned affidavits were commissioned by an unauthorized person is misconceived and misleading.

23. Secondly, learned counsel for the Respondents has submitted that the Applicants herein duly entered into and duly executed a lease agreement with the 1st Respondent. However, it was posited that even though the Applicants entered into and executed a lease agreement with the 1st Defendant/Respondent, same [Applicants] failed to comply with the terms of the lease agreement culminating into the retention of the 2nd Respondent to levy distress.

24. Furthermore, it was submitted that the levying of the distress and the attachment of the various properties which were obtaining in the demised premises was lawful and procedural. In any event, learned counsel for the Respondent has contended that prior to the actual levying of distress, the 2nd Respondent sought for and obtained orders vide Milimani Misc. Civ. Application E381 of 2024; George N Muiruri T/a Philip International Auctioneers & Yusuf Hussein Argamo v Bresly Boatique Hotel Singers Ltd, respectively.

25. In view of the foregoing, learned counsel for the Respondents has submitted that to the extent that the distress was lawfully levied, the Applicants herein have neither established nor demonstrated the existence of a prima facie case with probability of success.

26. On the other hand, learned counsel for the Respondent has also submitted that the Applicants have also failed to demonstrate the likelihood of irreparable loss arising and/or accruing, if the orders sought are not granted. In any event, it was contended that the loss, if any, that may arise is ascertainable and thereafter compensable in monetary terms.

27. In the premises, learned counsel for the Respondents has submitted that the Applicants herein have neither met the threshold to warrant the grant of the orders of temporary injunction, either as sought or at all.

28. To buttress the foregoing submissions, learned counsel for the Respondents has cited and referenced various decisions including Mrao v First American bank of Kenya Ltd & 2 Others [2003]eKLR, Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014]eKLR and Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018]eKLR, respectively.

29. Flowing from the foregoing, learned counsel for the Defendants/Respondents has contended that the application beforehand is devoid of merits and thus same ought to be dismissed with costs.

Issues For Determination: 30. Having reviewed the amended Notice of Motion application as well as the response thereto and upon taking into account the written submissions filed by and on behalf of the parties herein, the following issues do emerge [ crystalise] and are thus worthy of determination.i.Whether the amended notice of motion application dated the 4th June 2024 and supported by [sic] amended supporting affidavit is competent or otherwise.ii.Whether the Applicants have established and demonstrated the existence of a prima facie case with probability of success or otherwise.iii.Whether the Applicants herein shall be disposed to suffer irreparable loss or otherwise.iv.Whether the replying affidavit and the verifying affidavit attached to the counterclaim were commissioned by an authorized person or otherwise.

Analysis And Determination: Issue Number 1. Whether the amended notice of motion application dated the 4th June 2024 and supported by [sic] amended supporting affidavit is competent or otherwise. 31. It is common ground that the Applicants herein filed the Application dated the 14th May 2024 and in respect of which the Applicants sought for various reliefs. Nevertheless, the application under reference was subsequently amended culminating into the filing of the amended application dated the 4th June 2024.

32. Whilst filing the amended notice of motion application, the Applicants herein proceeded to and also filed two sets of [sic] amended supporting affidavits sworn on even date. In this regard, the question that does arise and which merits discussion is whether or not an affidavit which constitute evidence on oath, can be amended or at all.

33. To start with, there is no gainsaying that the law provides a window for amendment of pleadings. To this end, the provisions of Order 8 of the Civil Procedure Rules as read together with Sections 99 and 100 of the Civil Procedure Act, are instructive and relevant.

34. Nevertheless, it is worth pointing out that an affidavit is provided for by dint of Order 19 of the Civil Procedure Rules 2010 and which clearly stipulates that an affidavit is evidence on oath. Furthermore, it is imperative to observe that an affidavit is not a pleading and thus same does not lend itself to amendment.

35. To this end, it suffices to take cognizance of the provisions of Order 19 Rule 3[1] of the Civil Procedure Rules, 2010. Same are reproduced as hereunder;[Order 19, rule 3. ] Matters to which affidavits shall be confined. 3. 1.Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove:Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.(2).The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party filing the same.

36. The fact that an affidavit is not a pleading and thus not capable of amendment was also highlighted by the Court of Appeal in the case of Superior Homes (Kenya) PLC v Water Resources Authority & 9 others (Civil Appeal E330 of 2020) [2024] KECA 1102 (KLR) (19 August 2024) (Judgment), where the court stated and held thus;76. Section 2 of the Civil Procedure Act defines “pleading” as follows: “pleading” includes a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant.”From the above, an affidavit is not a pleading, and alleged special damages set out in an affidavit cannot be considered as pleaded special damages.Indeed, in Stephen Boro Githua v. Family Finance Building Society & 3 Others [2015] eKLR this Court held that:“As is trite law the contents of an affidavit constitute evidence on oath. An affidavit does not constitute a pleading. A pleading includes a summons, petition, a statement of claim or demand or a defence, a reply to a defence or counterclaim, all of which are subject to amendment, unlike an affidavit, which is evidence.” [emphasis supplied].

37. Arising from the clear exposition of the law in terms of the decision [supra] there is no gainsaying that an affidavit cannot be amended. Furthermore, where an affidavit, which is not a pleading is [sic] subjected to amendment, the entire affidavit is vitiated and thus becomes a nullity in law.

38. In my humble view, the moment the Applicants purported to amend the supporting affidavit, same [supporting affidavit] was rendered null and void and same ceased to have any probative value in eyes of the law.

39. To the extent that the amended supporting affidavit are null and void, there is no gainsaying that same cannot therefore be deployed to anchor the amended notice of motion application dated the 4th June 2024.

40. Simply put, the amended notice of motion application is rendered incompetent for want of the requisite evidential foundation. In this regard, there being no evidential anchorage, the entirety of the application is vitiated and thus same is fatally incompetent.

41. Having come to the conclusion that the entirety of the amended notice of motion application is incompetent, it would have been apposite to terminate the ruling at this juncture and to strike out the subject application.

42. However, for the sake of completeness, it is appropriate to venture forward and discuss the rest of the issues so as to discern whether the applicants herein indeed established the requisite basis in the manner prescribed vide the decision in Giella v Casman Brown [1973] EA 352 and reiterated in various cases, including Nguruman Limited versus Jan Bonde Nielsen and Others [2014] eklr.

Issue Number 2 Whether the Applicants have established and demonstrated the existence of a prima facie case with probability of success or otherwise. 43. The dispute between the Applicants on one hand and the Respondents on the other hand stems from a lease agreement which was entered into and executed by the parties as pertains to L.R No. 209/3746 [hereinafter referred to as the suit property].

44. It was contended that even though the Applicants entered into and executed the lease agreement, the Applicants failed to comply with the terms of the lease agreement including payments of the rents. In this regard, the 1st Respondent was constrained to and retained the services of the 2nd Respondent to levy distress against the Applicants.

45. Additionally, it was posited that pursuant to the instructions by the 1st Defendant/Respondent, the second Respondent proceeded to and served a proclamation notice upon the Applicants. Thereafter the second Respondent is said to have procured court orders vide Civil Application No. E381 of 2024; George N Muiruri T/a Philips International & Yusuf Hussein Argamo v Bresely Boutique Hotels & Another.

46. Other than the foregoing, it was submitted by learned counsel for the Respondents that armed with the court order, the 2nd Respondent proceeded to and levied distress of the movable properties that had hitherto been proclaimed.

47. Furthermore, it was submitted by learned counsel for the Respondents that upon the seizure/attachment of the movable properties which had been proclaimed, the Applicants herein who are said to be directors of Snyder’s Ltd & Bressly Ltd proceeded to and filed objection proceedings vide E381 of 2024.

48. On the other hand, it has been contended that the objection proceedings filed by Snyder’s Ltd & Bressly Ltd and which touched on [sic] ownership of distrained goods is still pending.

49. Be that as it may, it is the same goods/properties which are the subject of the objection proceedings vide E381 of 2024, which are similarly being addressed and litigated vide the instant suit.

50. Arising from the foregoing, the question that does arise relates to whether or not the properties which are in dispute belongs to the Applicants herein in the manner contended or whether the properties belong to the two companies who have filed objection proceedings elsewhere.

51. Without endeavouring to answer to question as to who is the rightful owner of the properties, it suffices to observe that it will be incumbent upon the trial court to engage with the factual matrix and thereafter, endeavour to determine the question of ownership of the various chattels, which are the subject of Distress.

52. It is only then that the trial court will be at liberty to determine whether or not the distress that was levied against the properties/ chattels in question was lawful or otherwise. Furthermore, it would be within the jurisdiction of the trial court, subject to determining the legality or otherwise of the distress, to decree suitable recompense.

53. On the other hand, there is also the contention that the Applicants herein failed to comply with and adhere to the terms of the lease agreement. In particular, it has been contended that the Applicants failed to pay the contractual rents as and when same fell due.

54. Yet again, there is the question as to whether or not the applicants breached and/or violated the terms of the lease agreement. Suffice it to point out that the determination of the question of breach or otherwise, shall also await the plenary hearing.

55. From the foregoing, it is evident and apparent that the factual controversy underpinning the dispute beforehand is not straight forward. In this regard, it is not easy for this court to determine the bona fides and the veracity of the claims and counter-claims being mounted by the Applicants, on one hand; and the Respondents on the other hand.

56. Having come to the foregoing conclusion, I beg to posit that it was incumbent upon the Applicants to plead their case with clarity so as to enable the court to discern/ decipher the arguable issues in an endeavour to arrive at a finding that the complaints beforehand disclose a prima facie case with probability of success.

57. However, on the basis of the facts that have been pleaded and canvassed by the Applicants, this court is unable to come to the conclusion that the Applicants have truly established and demonstrated a prima facie case in the manner prescribed under the law.

58. Without belabouring the point, it suffices to cite and reference, the holding in the case Mrao Ltd v First American Bank of Kenya Ltd& 2 others[2003] eKLR, where the court defined the meaning of a prima facie case.

59. For coherence, the Court of Appeal stated as hereunder:“a prima facie case in a Civil application includes but is not confined to a genuine and arguable case. It is a case which on the material presented before the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed on by the opposite party as to call for an explanation or rebuttal from the latter.”

60. Furthermore, the meaning and import of what constitute a prima facie case was revisited in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, where the court held as hereunder;“Prima facie” is a Latin phrase for “at first sight”, whose legal meaning and application has been the subject of varying interpretation by courts in many jurisdictions. Phrases like “a serious question to be tried”, “a question which is not vexatious or frivolous”, “an arguable case” have been adopted to describe the burden imposed on the applicant to demonstrate the existence of prima facie case. The leading English House of Lords case of the American Cyanamid Co. Ethicon Ltd [1975] AC 396 is a case in point. The meaning of “prima facie case”, in our view, should not be too much stretched to land in the loss of real purpose. The standard of prima facie case has been applied in this jurisdiction for over 55 years, at least in criminal cases, since the decision in Ramanlal Trambaklal Hatt V. Republic [1957] E.A. 332.

61. Arising from the foregoing discussion, my answer to issue number two [2] is to the effect that the Applicants herein have neither established nor disclosed the existence of a prima facie case with probability of success, which is a condition precedent to the granting of an order of temporary injunction.

ISSUE NUMBER 3 Whether the Applicants herein shall be disposed to suffer irreparable loss or otherwise. 62. Further and in addition, the Applicants herein are also called upon to demonstrate and prove that the loss if any that same are likely to suffer unless the orders are granted shall be irreparable. In this regard, the Applicant’s were obligated to place before the court evidence to demonstrate that the apprehended loss is one that is not capable of being atoned or compensated for in monetary terms.

63. Nevertheless, it is worth recalling that the properties which are said to have been attached and confiscated by the 2nd Respondent are indeed movable properties whose values have been adverted to and highlighted by the Applicants to be in the sum of Kes.913, 400/= only. [See paragraph 14 of the amended plaint].

64. To the extent that the Applicants herein have been able to quantify the value of the properties which have since been seized/attached, there is no gainsaying that the loss, if any, that may arise is one that is measurable in monetary terms and thus payable.

65. Simply put, the Applicants herein have similarly failed to prove that same shall be disposed to suffer irreparable loss. For good measure, it is worth recalling that irreparable loss is what has to be averted by issuance of an order of temporary injunction. Consequently, where there is no demonstrable irreparable loss, then the foundation upon which temporary injunction stands is defeated.

66. To this end, it is imperative to reference the holding of the court in the case of Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. , where the court stated as hereunder;If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.

67. Yet again, I come to the conclusion that the Applicants herein have failed to prove that whatever loss same are likely to suffer [ if any] shall be irreparable. To the contrary, there is no gainsaying that the properties which have [sic] been distrained upon can be quantifiable and thereafter the value thereof paid.

68. In addition, it is not lost on this court that the Applicants herein have indeed impleaded the payment of the value of the properties/compensation for loss of the hired property in the sum of kes.913, 400/= only. In this regard, the Applicants herein appear to concede the fact that the properties complained of can indeed be compensated for in monetary terms.

Issue Number 4 Whether the replying affidavit and the verifying affidavit attached to the counterclaim were commissioned by an authorized person or otherwise. 69. The learned counsel for the Applicants had also contended that the replying affidavit sworn by the 1st Respondent as well as the verifying affidavit attached to the counterclaim, were commissioned by an authorized person. In this respect, it was posited that one Boniface M Muumbi, who is said to have commissioned the said Affidavt[s], was/is not a commissioner for oaths.

70. On the other hand, learned counsel for the Respondents submitted that the commissioner for oaths who commissioned both the replying affidavit and the verifying affidavit was duly authorized. For good measure, learned counsel for the Respondents posited that the full names of the commissioner for oaths is Bonface Munyao Muumbi.

71. In addition, learned counsel for the Respondents submitted that upon the contestation by the Applicants herein same [learned counsel for the Respondent] procured a letter dated the 25th July 2024; and wherein the chief registrar of the judiciary confirmed the status of Bonface Munyao Muumbi as a commissioner for oaths.

72. To my mind, the question as to whether or not Bonface M Muumbi and Bonface Munyao Muumbi is one and the same person is a matter of evidence that can only be gone into during the plenary hearing.

73. On the other hand, the question as to the veracity of the letters dated the 25th July 2024, which adverts to Bonface Munyao Muumbi and the letter relating to Bonface M Muumbi; can only be verified upon summoning the chief registrar of the judiciary. Suffice it to state that the said officer can only be summoned during the plenary hearing.

74. Either way, this court is not seized of the requisite material and evidence to enable same to firmly hold that the replying affidavit and the verifying affidavit were commissioned by an unauthorized person. For good measure, it is the Applicants who raised the contention that the impugned replying affidavit and verifying affidavit were not properly commissioned. In this regard, the burden of proof laid on the shoulder of the Applicants to prove the assertion.

75. However, despite being the duty bearer, charged with the obligation to prove the assertion, the Applicant herein failed to do so. In this regard, I am unable to return a verdict that the impugned replying affidavit and the verifying affidavit in question, were improperly commissioned, in the manner contended by the Applicants.

76. At any rate, it is not lost on this court that striking out and expunging of documents is a draconian measure and hence same can only be resorted to in clearcut cases and when the issues of fact and law are devoid of any ambiguity and not otherwise. [See DT Dobbie & Co Ltd v Muchina [1982]eKLR].

Final Disposition: 77. Arising from the analysis in terms of the foregoing paragraphs, there is no gainsaying that the amended Notice of Motion application dated the 4th June 2024; is not only premature and misconceived; but same is also legally untenable.

78. In the premises, the orders that commend themselves to the court are as hereunder;i.The amended notice of motion application dated the 4th June 2024 is incompetent and same be and is hereby struck out.ii.The objection as to the competence of the replying affidavit and the verifying affidavit attached to the counterclaim, is misconceived and devoid of merits.iii.Consequently, the objection as to the competence of [sic] the verifying affidavit attached to the counterclaim is dismissed.iv.Costs of the application be and are hereby awarded to the Defendants/Respondents.

79. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF OCTOBER 2024OGUTTU MBOYAJUDGEIn the presence of:Benson – court AssistantMr. Biyogo Silas for the Plaintiffs/ ApplicantsMr. Simon Wachira for the Defendants/ Respondents